So on April 20th, the CRTC released Telecom Regulatory Policy CRTC 2017-104. Sounds juicy! It has the subtitle “Framework for assessing the differential pricing practices of Internet service providers”. Even juicier! What does all this mean? Damned if I know. Go read Geist!

OK OK, of course I know what it means. Sort of. Basically, first off, the CRTC told Videotron that they can’t be doing that thing where their “Unlimited Music” service does not count against their user’s data caps. It does not count at all! So that music service has what’s called a “zero-rating”, meaning you get charged zero data for that service. People (non-Videotron subscribers) don’t like that! The CRTC didn’t either, and told Videotron to stop that shit. Now, it’s a bit confusing because the Videotron bit comes from another decision, CRTC 2017-105, which came out at the same time (note the numbers – 104 and 105). But we gotta start with that. The CRTC says:

The Commission finds that Quebecor Media Inc., Videotron Ltd., and Videotron G.P. (collectively, Videotron) are acting in violation of subsection 27(2) of the Telecommunications Act by exempting the Unlimited Music program from data charges

27.(2) No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.

Now, you should know that, because I’ve written about 27(2) before. In that post, I was also praising the CRTC because they said Bell and Videotron were violating 27(2) by giving zero ratings to some of their video services. At the time (February 2015, the glorious pre-Trump era), I wrote that it was not the big net neutrality decision some commentators said it was, because (and I quote myself):

to say that this decision is some grand statement about net neutrality is just wrong. It’s a narrow decision based on one provision of one Act of Parliament. It has elements of net neutrality and leanings in that direction, but it is a long way from the true net neutrality decision most of us want.

So the CRTC back in 2015 did not make any big pronouncements, it just made a ruling against Bell and Videotron, which is why I was skeptical then. I’ll eat my words now, because this time, ooh boy! We have got some big pronouncements! That’s what the 2017-104 decision is (well, maybe not “big”, but “decent sized”). Now, it’s not like the CRTC said that “all the internet should be perfectly neutral” or anything so clear. But this is significant. Here, let Geist explain (told you to read him):

The CRTC today released the final chapter (for now) in its net neutrality governance framework, creating policy that establishes strong safeguards against net neutrality violations and severely restricts the ability for providers to engage in zero rating practices. When combined with the federal government’s clear support for net neutrality, the Canadian framework is now one of the strongest in the world

That’s what’s going on here – this is just a very significant part of a broader policy. Unfortunately the policy is scattered over a bunch of decisions that no one will ever read instead of some fun net neutrality manifesto, but we’ll take what we can get. The new decision goes with the Internet Traffic Management (ITMP) practices decision. It goes with that Bell / Videotron decision I wrote about in 2015 (what the CRTC calls the “Mobile TV Decision”). Don’t believe me that this new decision means we have net neutrality? Just read the CRTC’s press release about it entitled “CRTC strengthens its commitment to net neutrality, consumer choice and free exchange of ideas by citizens” – it’s right there in the title! They also say it in the decision:

So, while there is no all-encompassing Commission decision or regulatory framework on the broad issue of net neutrality, when the various legislative and regulatory elements are put together – including subsection 27(2), the ITMP framework, and the Mobile TV decision – the meaning of net neutrality in the Canadian context is clear. The current proceeding is about adding another perspective to Canada’s net neutrality framework.

So what does the decision actually do? Well, as I’m sure you can tell I’ve been avoiding the subject. I just don’t feel like reading the fucking thing, it’s long! I keed, I keed, it’s really not that long; 160 paragraphs is nothing for the CRTC. Basically the decision is a “framework” (again, right in the title) which describes when it might be ok for an ISP to engage in differential pricing practices, of which zero rating like Videotron was doing is but one example. HOWEVER, and the point is, differential pricing will barely ever be ok. The CRTC says that any future question of differential pricing should be decided on 4 factors:

the degree to which the treatment of data is agnostic (i.e. data is treated equally regardless of its source or nature);

whether the offering is exclusive to certain customers or certain content providers;

the impact on Internet openness and innovation; and

whether there is financial compensation involved.

They CRTC says that first factor will usually be the most important. The CRTC also says that we won’t determine anything in advance, but if people complain about some pricing practice of an ISP, we will take a look, and we’ll use these 4 factors to sort it all out (and decide if the practice violates 27(2)). They’ll also rule if an ISP asks in advance before they set some differential pricing. This is all what us lawyerly types call an “ex post” approach – basically, fancy Latin for “after”.

The CRTC does admit there may be some circumstances when differential pricing is a good thing, like when public interest or privacy is at stake. I have gotten drunk, sobered up and gotten drunk again trying to figure out what such a circumstance may be, to no avail. But even then, the CRTC thinks about the long term:

The Commission considers that any short-term benefits of differential pricing practices would be greatly outweighed by the negative long-term impacts on consumer choice if ISPs were to act as gatekeepers of content through their use of such practices

Oooh that’s good stuff. There are plenty more details in the decision about the four factors, and some other stuff. One of the important things the CRTC chose to not really make a judgment on was the issue of data caps generally. Plenty of people were hoping the CRTC would use this opportunity to say data caps suck, but “the Commission will not launch a proceeding regarding data caps … at this time”. Ah well, can’t have everything.

2 Responses to Hooray for the CRTC!

The arguments in favour of net partisanally are the old flat and round logic applied to a world where the Ministry of Silly Walks rules.

I just wonder why the media in the US can not grasp the fact that some facts are real and others false. Could it be some people are paid not to know what they know? Could it be most people are paid not to know what they know.

Thank any celestial being that has provided Canada with some sanity on the issue of net neutrality, climate change and many other best practices.
It will be revealing to see who are Canada’s fast lane champions?

About Me

Allen Mendelsohn is me. I am a lawyer specializing in internet law working out of Montreal, though sometimes I do it in front of the U.S. Capitol. That should tell you what you need to know about internet law in Canada. I also warp young legal minds at the Faculty of Law at McGill.